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Copyright Challenges for User Generated Intermediaries: Viacom V Youtube and Google

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Copyright Challenges for User Generated Intermediaries: Viacom V Youtube and Google CHAPTER ELEVEN COPYRIGHT CHALLENGES FOR USER GENERATED INTERMEDIARIES: VIACOM V YOUTUBE AND GOOGLE Damien O’Brien• INTRODUCTION YouTube, the video sharing website has risen to be one of the most popular and profitable websites on the Internet. What was first created in February 2005 as a platform for people all over the world to share videos, has now developed into a billion dollar business, that is an integral part of the Google corporation. However, while the success and popularity of YouTube is clear, the associated copyright issues which lie at the very core of the YouTube platform, are far from settled. Evidencing the legal uncertainty surrounding the operation of YouTube, is the recent high profile litigation which has been brought by entertainment company, Viacom International. The case filed in the United States District Court for the Southern District of New York and any subsequent appeals, have the potential to be one of the most influential copyright decisions in the digital era. YouTube is not the only user generated intermediary to have encountered legal difficulties, rather it exemplifies the copyright challenges facing user generated intermediaries. Indeed, the evolution of Web 2.0 and other new digital technologies have enabled digital content to be easily reproduced and communicated online, without the permission of the copyright owner. The following chapter will provide an analysis of the recent Viacom v YouTube litigtion, including the claims • The law as it appears in this chapter is current as of August 2007. 220 Copyright challenges for user generated intermediaries: Viacom v YouTube brought by Viacom, both party’s arguments and an examination of the key issues, which are likely to decide the outcome of the case. The chapter will also consider copyright challenges for other user generated intermediaries, such as blogs and wikis. Finally, the chapter will provide an analysis from an Australian perspective of some of the copyright challenges which user generated intermediaries are likely to encounter under Australian copyright law. VIACOM v YOUTUBE Viacom’s complaint On 13 March 2007, Viacom International Inc, one of the largest media corporations in the United States brought an action for copyright infringement in the United States District Court for the Southern District of New York against YouTube Inc and its parent company, Google Inc.1 The complaint begins with an analysis of the technological landscape. In essence, Viacom assert that the emergence of new digital technologies over the past decade have revolutionised the way people inform and entertain themselves. Viacom claims, while many people have used these technologies to express themselves creatively, these very same digital technologies have also been misused to fuel an explosion of copyright infringement. In Viacom’s view, YouTube is one such entity. In paragraph two of the complaint Viacom allege that: YouTube has harnessed technology to wilfully infringe copyright on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentive of America’s creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit 1 Viacom International Inc v YouTube Inc, YouTube LLC and Google Inc, 07-cv-02103 (United States District Court for the Southern District of New York, filed 13 March 2007). For a copy of the complaint see Evan Brown, Viacom sues YouTube (2007) Internet Cases <http://www.internetcases.com/archives/2007/03/viacom_sues_you.html> at 30 June 2007; also see Greg Sandoval, Viacom sues Google over YouTube clips (2007) CNET News <http://news.com.com/Viacom+sues+Google+over+YouTube+clips/2100-1030_3- 6166668.html> at 30 June 2007. Copyright law, digital content and the Internet in the Asia-Pacific 221 without payment of license. YouTube’s brazen disregard of the intellectual property laws fundamentally threatens not just the Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.2 Viacom further allege in the complaint that the: Defendants actively engage in, promote and induce this infringement. YouTube itself publicly performs the infringing videos on the YouTube site and other websites. Thus, YouTube does not simply enable massive infringement by its users. It is YouTube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site. YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value. YouTube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site. Because YouTube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.3 At the heart of the complaint, Viacom alleges six causes of action of copyright infringement against YouTube and Google. The first three causes of action attempt to hold YouTube and Google liable for primary or direct copyright infringement. They are for: 1. Public performance – the defendants have, without permission of the copyright owner, publicly performed and authorised the public performance of the infringing uploaded videos; 2. Public display – the defendants have, without permission of the copyright owner, publicly displayed and authorised the public display of the infringing uploaded videos; and 3. Reproduction – the defendants have, without permission of the copyright owner, reproduced and authorised the reproduction of the infringing uploaded videos through the YouTube website. 2 Viacom International Inc v YouTube Inc, YouTube LLC and Google Inc, 07-cv-02103 (United States District Court for the Southern District of New York, filed 13 March 2007) [2]. 3 Viacom International Inc v YouTube Inc, YouTube LLC and Google Inc, 07-cv-02103 (United States District Court for the Southern District of New York, filed 13 March 2007) [4]-[6]. 222 Copyright challenges for user generated intermediaries: Viacom v YouTube The final three causes of action all attempt to hold YouTube and Google liable under the doctrine of secondary or indirect copyright infringement. These claims include: 4. Inducement of copyright infringement – the defendants are liable for inducing the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website. 5. Contributory copyright infringement – the defendants are liable for contributing to the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website. 6. Vicarious copyright infringement – the defendants are vicariously liable for the infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading infringing videos to the YouTube website. Countering the claims by Viacom, YouTube and Google in their defence claim that: Viacom’s complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act (DMCA). The DMCA balances the rights of copyright holders and the need to protect the Internet as an important new form of communication. By seeking to make carriers and hosting providers liable for Internet communications, Viacom’s complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well and beyond what the law requires.4 YouTube and Google’s defence, essentially denies each of the allegations in Viacom’s complaint and raises 12 defences in their favour. These defences include the safe harbors, licence, fair use, failure to mitigate, failure to state a claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches and substantial non-infringing uses. 4 See Elinor Mills, Google denies Viacom copyright charges (2007) CNET News <http://www.news.com/2100-1026_3-6180387.html> at 30 June 2007. Copyright law, digital content and the Internet in the Asia-Pacific 223 The key issues likely to decide the case A ‘volitional act’ Viacom v YouTube Inc and Google Inc is likely to be decided on the basis of three key issues, which are in question in the case. The first issue concerns the allegations of primary or direct copyright infringement against YouTube and Google. In particular, whether the necessary element of volition is present in YouTube’s operations. In order to establish an action for primary or direct copyright infringement under United States copyright law, there must first be a volitional act committed by the defendant in regard to the infringement.5 Generally, the courts in the United States have held that the automated copying by machines, occasioned by others, is insufficient to establish a volitional act. Importantly, in Religious Technology Center v Netcom On-Line Communications Service Inc,6 the Court held that ‘[a]lthough copyright is a strict liability statute, there still should be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party.’ This issue of volition was more recently examined in Parker v Google Inc,7 where the Court held ‘[w]hen an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing.’ In the present case, the question will be whether the manner in which the uploaded videos are performed, displayed and created is sufficiently automated enough, so as to negate any active volitional involvement by YouTube in each act.
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